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Employment Q&A: OSHA-Employee Misconduct

11/17/2016 | Category: Employment Law-Q & A

- If an employee was not using safety equipment provided at the time of an accident, does the company have a defense from an OSHA citation? 

 - The answer, as sometimes is the case, is “it depends.”  The company could possibly have a defense in this situation.  Employee misconduct is the most common defense to an OSHA citation.  Generally, the defense is derived from the concept that the employer should not be punished for the activities of its employees where the employees have been given all opportunities and resources to comply with the law.

In order to successfully use this defense, an employer must prove and demonstrate that the employer has met the following criteria:

  1. Established a work rule adequate to prevent the violation;
  2. Effectively communicated the rule to employees;
  3. Established methods for discovering violations of work rules, and yet did not know about an isolated violation of the work rules; and
  4. Established effective enforcement of the rule when violations are discovered.

In most cases, employers are able to produce their written policy along with some training records, but often struggle to present written evidence that they are actively supervising their employees to ensure compliance with safety policies.  It is often even more difficult to demonstrate that they enforce violations through discipline.  It is imperative that employers have such policies in place, and can demonstrate actual enforcement of these policies.   

Thus, an employer must not put its head in the sand in relation to safety violations.  A proper safety program requires regular enforcement.  Simple verbal warnings are not enough.  When an infraction of a safety rule is found, it should be documented in some form. 

Ross, Brittain & Schonberg Co., L.P.A.

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